Royal Prerogative - Class Notes

Lecture 5 – The Royal Prerogative

Intro:

—  In the UK, all actions of government are taken on behalf of the crown.  The prerogative concerns the power of the crown. 

—  It has to be made clear what is meant by the Crown – i.e. who exercises the power on the Crown’s behalf.

—  Also needs to be made clear:

1.    What the nature of the power is (how clearly defined is this power) and

2.    The relationship between how the power is exercised and any related statutes

—  We should also be concerned with the origin of conventions – how did they come about?

What is the Royal Prerogative? Definitions -

Two definitions that are used by the courts: That of Blackstone, and that of Dicey

In Blackstone’s Commentaries on the Laws of England, Blackstone Define the prerogative as:

“that special pre-eminence which the king has over and above all persons, and out of the ordinary course of the common law, in the right of his regal dignity. It signifies….something that is required or is in preference to all others”

Dicey

the residue of the discretionary authority, which at any time is legally left in the hands of the crown – every act which the executive government can lawfully do without the authority of an Act of Parliament is done in virtue of this prerogative.

A more modern definition:

Colin C. Munro describes the Royal Prerogative

as those attributes, peculiar to the Crown which are derived from the common law, not statute, and which still survive.

You can tell from these definitions that these are powers that reside in the crown – but as we shall see, they are not necessarily exercised by the crown. They are, in practice, exercised by the agents of the crown such as ministers, the attorney-general or even judges.

• The second thing that you need to take from this definition is that these powers are common law powers. Therefore, they are justiciable, they can be challenged or enforced in courts. So they are to be distinguished from conventions in this way.
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ALSO, NOTE – FROM STUDY GUIDE:

•  the prerogative is inherent in and peculiar to the Crown
• prerogatives are common law powers: i.e. they are recognised by the courts
• the rights and powers are residual: they cover areas over which Parliament has not enacted statutes and they can be limited by Parliament
• the prerogative legitimises executive actions without the need for an Act of Parliament.

Examples of Prerogative Powers:

• There is along list and a wide range when it comes to the number of powers that are exercised under the royal prerogative. As always is the case in England, nobody is sure the full extent of the range of the powers.

In 2003, the HOUSE OF COMMONS Public Administration Select Committee published for the first time what they described as a non-exhaustive list of prerogative powers. Blackstone divides Prerog Powers into  Domestic and Foreign Powers:

It included Domestic Powers  such as;

1.  The appointment and dismissal of ministers

2.  The summoning, prorogation and dissolution of parliament (but we established that, by convention, the power is only exercised in consultation with the prime minister)

3.  The Royal Assent to Bills (though by convention, Bills are hardly ever rejected by he Monarchy)

4.  Appointments and regulation of the civil service

5.  Appointment of officers in the armed forces

6.  The issuing of passports

7.  The prerogative of mercy

These are domestic policy matters. There are also a number of matters in foreign policy which the parliamentary sub-committee listed as reliant on prerogative powers: These include things such as:

1.    The making of Treaties

2.    The declaration of War

3.    The recognition of Foreign States

4.    The Accreditation of Diplomats

• Powers relating to the legislature, e.g. - the summoning, proroguing and dissolution of parliament; the granting of royal assent to bills; legislating by Order in Council (e.g. in relation to civil service) or by letters patent; creating schemes for conferring benefits upon  citizens where Parliament appropriates the necessary finance. Last time Crown attempted to dissolve parliament without reference to Cabinet/PM? 1835 under William IV.
• Powers relating to the judicial system, e.g. - various functions carried out through the Attorney General and the Lord Advocate; pardoning of convicted offenders o remitting or reducing sentences; granting special leave for appeal to the Judicial Committee of the Privy Council. Enter Nolle Prosequi
• Powers relating to foreign affairs, e.g. – the making of treaties, the declaration of war and the making of peace; restraining aliens from entering the UK and the issue of passports – R v Foreign Sec, Ex Parte Everett (Court held for the first time that granting of passports subject to review by the courts). Also R v Foreign and Comm. Office, Ex Parte Rees Mogg – treaty making powers of FCO challenged for the first time. I.e. could the government sign the Masstricht treaty without the approval of the House of Commons? Yes – if it was done under the prerogative.
• Powers relating to the armed forces e.g. – the Sovereign is commander in chief of the armed forces of the Crown and the control, organisation and disposition of the armed forces are within the prerogative.
• Appointments and honours, e.g. – appointment of ministers, judges and many other holders of public office; creation of peers and conferring of honours and decorations.
• Immunities and privileges, e.g. – the personal immunity of the Sovereign from being sued.
• The prerogative in times of emergency, e.g. – requisitioning of ships (where compensation would be payable).

All these actions rely on the crown as their source of power.

The first thing you will notice about this list is that – well the king does not do all these things. The SOURCE of authority to do these things comes from the crown.

• These powers, though they derive their authority from the crown, they are not actually exercised by the crown – they are exercised by various ministers, sometimes even judges exercises powers that have as their source of origin the royal prerogative.

But there are some examples of prerogative powers that are described as personal prerogatives –i.e. they are exercised only by the king e.g.

• The Assent to Bills, that’s personal. It’s not exercised by anyone else – hence technically, according to the prerogative, the king can refuse to assent to a bill. (But by convention, this will hardly ever happen[1])
• Another example of this is dissolution of parliament – only the crown does that – though by convention, the crown does it on the advice of the PM

There are also other aspects of the personal prerogatives which are less relevant though they are still interesting. For example, the prerogative that the:

·         sovereign can never die, or; (Guarantees continuity of the Crown)

·         sovereign can do no wrong; i.e. cannot be sued in her own courts – therefore immune from prosecution

History of Prerogatives:

Historically, the medieval monarchy was both feudal lord and head of the kingdom.  As such, the King had powers accounted for by the need to preserve the realm against external foes and an ‘undefined residue of power which he might use for the public good’.  He could exercise the ‘royal prerogative’ and impose his will in respect of decision-making. Moreover certain royal functions could be exercised only in certain ways.  The common law courts were the King’s courts and only through them could the King decide questions of title to land and punish felonies.  Yet the King possessed a residual power of administering justice through his Council where the courts of common law were insufficient. In the 17th century, disputes arose over the undefined residue of prerogative power claimed by the Stuart kings.  The conflict was resolved only after the execution of one King and the expulsion of another in 1649 (Charles I) and 1688 (James II), culminating in the Bill of Rights 1689, which declared illegal certain specific uses and abuses of the prerogative. The second stage was the growth of responsible government and the establishment of a constitutional monarchy, spurred on by the various electoral reform acts of the 19th century. It became established that the bulk of prerogative powers could be exercised only through and on the advice of ministers responsible to Parliament.  Although the monarch retained formal power of appointment and removal of ministers and ministries, the development of collective ministerial responsibility made it increasingly difficult for the King or Queen to exercise such power freely against the wishes of the Prime Minister and Cabinet.  However, the ability of ministers to rely on prerogative powers continues to give rise to problems of accountability.

Control of Prerogative

So – this is a power that resides in the crown, residual power  that can be exercised without parliamentary authority. How is this power regulated – how is the power controlled. So lets look now at control of the royal prerogative.

Well in two main ways – firstly it is controlled by the courts. Secondly its controlled by the parliament.

Control of the Royal Prerogative by the Courts:

The courts have maintained, from the very earliest times, that they have a right to determine whether or not a prerogative exists. And if it exists, they have a right to determine the scope of the prerogative. In early cases, when our famous judge, Lord Coke, whom we met yesterday when we were discussing rule of law stated that the king has no right to judge cases and established the principle “that the king has no prerogative except for that which the law allows him”.   Prohibitions Del Roy (Prohibitions Case) (1607) The King attempted to settle land case. Court (Coke, CJ) held that he could not do that. “the king in his own person cannot adjudge a case, either criminal, as treason, felony, etc., or betwixt party and party,…but this ought to be adjudged in some court of justice….His Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects are not to be decided by natural reason…”

Also the courts have made it very clear that the King cannot create any new prerogatives: There is a famous quotation by Lord Diplock, LJ in the case of BBC v Johns,1965 (AER) 923 where he stated that:

It is 350 years and a civil war too late for the Queen’s courts to broaden the prerogative. The limits within which the executive government may impose obligations or restrictions on citizens of the United Kindom without statutory authority are now well settled, and are incapable of extension. 

But be careful how you treat this case, because in another case we have already met, the court held that yes, there can be no new prerogatives, but they can extend an old prerogative to a new situation. This case, as you know, had to do with wire-tapping.

Also, courts can interpret the scope of a prerogative very broadly, and when you do this, you are or can be effectively creating new powers. The best example of this is the case of Ex Parte Northumbria Police Authority – where the Home Secretary claimed that he had the power to issue arms to policemen under the royal prerogative. The plaintiffs claimed that actually, there was no royal prerogative to supply arms to anyone, so they were trying to create a new royal prerogative. The court said no – the prerogative is to take all reasonable’s steps to protect the queen’s peace – and that should include giving guns to policemen if necessary.

Also, lets consider what was established by the GCHQ Case. We have met this case before – but why this case is important – because it shows 1. The courts (both of the Court of Appeal and the House of Lords  affirmed that prerogatives were definitely reviewable. 2. However, they re-affirmed that there are certain aspects of the royal prerogative, what the courts called “high policy” that the courts would not review. Things such as

• the making of treaties
• awarding honors
• national defense matters
• the prerogative of mercy

Parliamentary Control of the Exercise of the Prerogative

This happens in two ways:

First parliamentarians can question ministers in parliament about how the exercised the royal prerogative.

But there are some things that are not asked about in Parliament. For example:

• matters concerning national security,
• matters concerning legal advice from the attorney general,
• matters concerning court proceedings.

The second way in which parliament regulates the prerogative is by statute: if parliament passes a statute in an area in which the royal prerogative is exercised or applies, the statute prevails over the royal prerogative.

Your notes 72, state it best: “where an act of parliament covers the same scope as a prerogative, the act of parliament prevails and the prerogative, if not expressly abolished, is placed in abeyance.”

The case that supports this proposition is:

Attorney-General v de Keyser Royal Hotel

It had to do with a hotel that was occupied in war during the first world – and the authority to occupy the hotel could effectively come from two places, first was the royal prerogative which allows reasonable steps to be taken in defense of the realm and secondly from a statute. The government decided to invoke the prerogative, because under that, they paid less money to the hotel owners. But the court said that the no, if there is a particular area of law which grants you power under the prerogative and under statute, the statute overrides the prerogative.

R v Secretary of State for the Home Department, Ex Parte Fire Brigades Union

There was a system in place to compensate people who had been victims of violent crimes which had as its source, the royal prerogative. Parliament passed a law to regulate this area of the law, and left it to the discretion of the Home Secretary when that law would come into force. But the home secretary did not like the new law – he felt that it gave up too much compensation. So he decided that the best thing to do was to ignore the law and keep acting under the prerogative. Courts held that he could not do that – once a law has been passed, even if it has not come into force yet, it must still have precedence over the prerogative.

Debate – which we can have is – same with conventions – should this be codified or not?

Anachronistic, undemocratic, but its important that the executive have some of these powers because  

A writ of mandamus or mandamus (which means "we command" in Latin), or sometimes mandate, is the name of one of the prerogative writs in the common law, and is "issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly".^[1]

A writ of prohibition is a writ directing a subordinate to stop doing something that they may not do, according to law, but are doing. In practice, the Court directs the Clerk to issue the Writ, and directs the Sheriff to serve it on the subordinate, and the Clerk prepares the Writ and gives it to the Sheriff, who serves it.

Certiorari (pronounced /ˌsɜrʃ(i)əˈrɛəri, -ˈrɛəraɪ, -ˈrɑri, ˌsɜrtɪə(ʊ)ˈrɑːri/^[1][2]) is a type of writ seekingjudicial review, recognized in Roman, English, Philippine^[3] and American law. Certiorari ("to be more fully informed") is the present passive infinitive of the Latin certiorare ("to show, prove, or ascertain"). A writ of certiorari currently means an order by a higher court directing a lower court, tribunal, or public authority to send the record in a given case for review. Often used by the Supreme Court to influence future cases this writ goes hand in hand with the writ of habeas corpus.

So you cannot issue writs of to compel the sovereign to take an action. A sovereign cannot be tried in its own courts. That’s why you saw that in the case of M, which we discussed yesterday, the Home secretary at the time claimed that he could not be held liable for contempt because he was an agent of the crown, and the courts basically responded that though he could not be, his agents certainly could be.

Future – should they be codified

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[1] E.g. of when a king can ignore this convention? Perhaps this only when the king is acting on the advice of a minister

Or if the law was passed improperly – for e.g. if the law is changing a rule that requires a referendum, but no referendum is passed, the king could go against the convention and refuse to assent the bill.

Or if the Bill abolishing the monarchy is sent to king, it is generally believed that the monarchy would not assent to such a bill